Ethics & Public Policy Center

Who Should Replace Justice Stevens?

President Obama has recently raised alarms about the supposed threat of conservative judicial activism — of Supreme Court majorities that would wrongly override democratic enactments and invent constitutional rights that advance conservative policy ends. But the alternative that he favors is liberal judicial activism: He has committed to appoint justices who will indulge their own subjective passions, their “deepest values” and “the depth and breadth of [their] empathy” in deciding what the Constitution means.

A century ago, it was liberals who advocated judicial restraint and who opposed the freewheeling use of “substantive due process” to invalidate progressive economic and social legislation. Unfortunately, since the 1960s, most liberals have become aggressive advocates of the sort of lawless judicial activism epitomized by Roe v. Wade. Rulings like Roe poison American politics by removing contentious issues from the give-and-take compromise that the ordinary processes of representative government entail.*

Of the candidates being mentioned to fill the Stevens vacancy, the one who most clearly offers the promise of pursuing the path of judicial restraint is Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit.

* This paragraph was omitted from the final published version as a result ofa last-minute cut to save space.